SBA Size Protests: Agency’s Corrective Action Did Not Extend Deadline

A procuring agency’s decision to take corrective action in response to a GAO bid protest did not extend the standard five-business day deadline to file a SBA size protest.

This was the decision of the SBA Office of Hearings and Appeals in a recent SBA size appeal case, in which SBA OHA held that a size protest was untimely when it was filed within five business days of the agency’s notification, after taking corrective action, that it would reaffirm its award to the protested contractor.

SBA OHA’s decision in Size Appeal of EFT Architects Inc., SBA No. SIZ-5460 (2013) involved a VA solicitation for architect/engineer design services.  The solicitation was set aside for SDVOSBs.

After evaluating competitive proposals, the VA notified offerors on October 23, 2012 that Triple C – The A&E Group, Inc. had been selected for award.  The next day, EFT Architects, Inc., an unsuccessful competitor, filed a bid protest with the GAO challenging the award.

The VA subsequently agreed to take corrective action, which consisted of re-reviewing Triple C’s proposal.  The VA did not cancel the award to Triple C, but stayed performance of the contract pending the re-evaluation.

On February 25, 2013, the VA notified EFT that it had completed its second review of Triple C’s proposal.  The VA stated that its re-review had confirmed that Triple C was fully capable of performing the contract, and therefore the original award to Triple C was upheld.

On February 28, 2013, EFT filed a size protest of Triple C.  In its size protest, EFT alleged that Triple C was affiliated with its subcontractor under the ostensible subcontractor rule.

The SBA Area Office dismissed Triple C’s size protest as untimely.  The SBA Area Office wrote that in order to be timely, Triple C’s size protest should have been filed within five business days of the October 23, 2012 notification.

EFT filed a size appeal with SBA OHA.  EFT argued that the February 25, 2013 confirmation was a “new award” to Triple C, and thus the size protest was timely filed within five business days of that new award.

SBA OHA disagreed.  It wrote that EFT’s argument “would be persuasive if the [VA] had canceled the award” and “then issued a new award.”  However, “the record establishes that the VA did not cancel the procurement and issue a new award prior to [EFT’s] filing the size protest.”  Therefore, “the October 23, 2012 notification date is still the operative date for determining timeliness of the protest at issue.”  SBA OHA upheld the SBA Area Office’s decision dismissing EFT’s size protest as untimely.

The EFT Architects size appeal decision is a good reminder that the SBA’s size protest timeliness rules are strictly enforced and exceptions are rarely allowed.  As this case demonstrates, even an agency’s decision to take corrective action with respect to the procurement in question may not be enough to grant the protester a new five-day window.

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